Southwestern Bell Telephone v. Garza

• Decision Date: 31 August 2001
• Docket Number: No. 13-99-789-CV,13-99-789-CV
• Parties: (Tex.App.-Corpus Christi 2001) SOUTHWESTERN BELL TELEPHONE COMPANY, APPELLANT, v. DAVID GARZA, APPELLEE
• Court: Texas Court of Appeals

Page 214

58 S.W.3d 214 (Tex.App.-Corpus Christi 2001)

SOUTHWESTERN BELL TELEPHONE COMPANY, APPELLANT, v. DAVID GARZA, APPELLEE.

No. 13-99-789-CV

Court of Appeals of Texas, Corpus Christi

August 31, 2001

Rehearing Overruled October 18, 2001.

On appeal from the 357th District Court of Cameron County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Dorsey, Castillo, and Cantu¹

OPINION

Opinion by Justice CANTU (Retired).

This is an appeal by Southwestern Bell Telephone Company from a jury verdict favoring former employee, David Garza, in his suit for discrimination and termination in violation of the Texas Anti-Retaliation Statute.² Based on the evidence, the jury concluded that the discrimination or termination was committed with malice and awarded $1,034,108.00 as compensatory damages and $1,000,000.00 as punitive damages. For reasons hereinafter stated, we will affirm.

SOUTHWESTERN BELL'S CONTENTIONS

In ten issues, which we regroup into eight basic challenges, Southwestern Bell makes the following claims: (1) that the evidence was neither legally nor factually sufficient to sustain the jury's finding that Garza was "disqualified or discharged" in violation of the anti-retaliation statute, (2) that the court should not have submitted a question inquiring whether it "discharged" Garza because his petition sought damages only for "disqualification" under the statute, (3) that the liability question was improperly submitted in the disjunctive requiring an answer that cannot support the judgment entered, (4) that the trial court erred in admitting and excluding certain evidence, (5) that the mental anguish award is not supported by legally nor factually sufficient evidence, (6) that the trial court erred in refusing to instruct the jury pursuant to its tendered definition of mental anguish, (7) that the findings of malice and punitive damages are not supported by legally and factually sufficient evidence, and (8) that the trial court erred in denying its request for remittitur of mental anguish and punitive damages.

FACTUAL SUMMARY

David Garza, a twenty year employee with Southwestern Bell in Brownsville, Texas, sustained a work related injury to his head and neck on October 20, 1994, a Thursday, while working as an outside plant technician when his co-worker, Louis Hernandez, lowered a hydraulic crane-bucket directly above Garza's head as Garza worked on the ground slicing a wire strand. After Garza struck his head, angry words were understandably exchanged with Hernandez. Hernandez then reported the confrontation to their "second line" supervisor Ruben Gonzalez.³ Garza did not report the injury at that time; nevertheless, Gonzalez immediately initiated an investigation into the incident.⁴ After interviewing both Garza and Hernandez, Gonzalez concluded that it was impossible to determine exactly what happened. The initial investigation did not, however, establish any safety violations by Garza, although it did find that both employees had committed unsafe acts. Gonzalez recommended that both, Garza and Hernandez, be given an oral reprimand, termed "a step of positive discipline" for "effectiveness with others" for not getting along with one another. Garza continued to work on the assigned project with another co-worker through the weekend on overtime status.

Sometime during the weekend, Garza began to experience neck pain. The following Monday, October 24, 1994, he reported the injury to Rene Robles, his "first line" supervisor and requested medical treatment. Robles took Garza to a doctor, thereby causing a workers' compensation claim to be initiated. Robles then drafted a "Flash Report" of the injury for Wayne Rider, a "third line" supervisor and Regional Manager representing upper-level management. The Flash Report indicated that no further investigation was warranted. The incident did not become a serious issue of concern to Southwestern Bell management until Garza sought medical treatment. The seeking of medical attention triggered a safety investigation under the rules of Southwestern Bell and the Occupational Safety and Health Administration. Thereafter, Garza's safety habits and career safety record became the focus of Garza's supervisors. Rider changed the "Flash Report" and ordered another investigation of the incident to be conducted, indicating, in his memorandum, that an assessment of punishment was a foregone conclusion upon completion of the investigation. ⁵

The investigating committee looking into the circumstances of the accident concluded that it was not able to determine the cause of Garza's injury because of conflicting versions and lack of witnesses. As a result, no action was recommended against Hernandez, the co-worker who had lowered the hydraulic crane bucket onto Garza's head. ⁶ Rider, nevertheless, requested that Gonzalez review Garza's entire personnel file spanning twenty years, which included a number of remote minor incidents, some of which were not Garza's fault and some which referred to driving errors and warnings with respect to further safety incidents.

Gonzalez noted every accident or mishap in Garza's file, regardless of any fault attributable to Garza, and drafted a report criticizing his safety record. The report listed ten "accidents" involving Garza and five unsatisfactory safety ratings over the previous twenty years. It also criticized Garza's attitude. Gonzalez concluded his report by recommending that Garza be "disqualified" from his outside plant technician position with loss of his driving privileges, which necessarily disqualified him from all positions requiring driving and most of the jobs he had performed during his twenty years with Southwestern Bell.⁷ Essentially, Gonzalez reversed his previous decision to issue a verbal reprimand and complied with Rider's instructions to take disciplinary action upon completing his investigation.

Although Garza's injury occurred while the crane bucket was being operated by Hernandez, neither Robles, Gonzalez, nor Rider considered it appropriate to examine Hernandez's personnel file or to evaluate his safety record, even though the investigating committee attributed most of the fault to Hernandez. Gonzalez testified that Hernandez was not disciplined after the accident, as was Garza, because he (Gonzalez) had, in the meantime, been transferred to the engineering department and no longer exercised disciplinary jurisdiction over Hernandez. Gonzalez admitted that he, nonetheless, continued disciplining Garza because Rider wanted him to act on Garza's matter right away. Moreover, Gonzalez neither prepared an accident report for Hernandez's file nor even bothered to look into his file.

When confronted with Hernandez's file, Gonzalez was unable to explain why a number of accidents in which Hernandez had been found at fault, and of which he was personally aware, were never entered into Hernandez's file as required by company policy. A review of Hernandez's safety record before the jury disclosed a safety record perhaps more serious than Garza's.⁸ Rider immediately approved the recommendation. Two days later, on November 8, 1994, Garza was told to find a non-driving position in the company within two months, or he was to be terminated.

As a union member,⁹ Garza requested and received a grievance hearing prior to his termination. Dennis Dobbs, president of the communication workers, local 6209, and an employee of Southwestern Bell, attended the meeting and took notes. Relying on his notes, Dobbs testified that Gonzalez stated that the incident involving Garza and Hernandez would have been insignificant except that Garza's election to seek medical treatment made it a chargeable accident against Garza and a "reportable accident" involving workers' compensation and OSHA. Dobb's notes further reflected remarks by Rider that Garza was probably the best lineman in the Brownsville area, and possibly the best lineman in his (Rider's) organization.

As president of the local union, Dobbs attended many grievances as representative. During his six years in that position, Dobbs never saw an employee disqualified from driving as a result of a review of a non-driving incident or as a result of an incident that occurred that was non-driving related. Finally, Dobbs recalled Rider making a statement to him that "if Garza had not gone to see a doctor, nothing would have happened." According to Dobbs, Southwestern Bell did not adhere to its own driving policies when it removed Garza's driving privileges.

Pursuant to Southwestern Bell's "Driving Record Review Policy," the company may remove an employee from a driving job if the determination is

based upon an investigation following a report from the public, another employee, or any law enforcement offense stating that the driver engaged in unsafe driving behavior as defined ... or an inappropriate circumstance based upon direct and incidental supervisory observation of such unsafe driving behavior.

After reviewing Garza's driving record and the company policy, Dobbs expressed the opinion that none of the criteria required for removal of Garza's driving privileges existed. This opinion was never challenged.

Dobbs's testimony was further corroborated by that of Diana Vasquez, former vice president of the local union and now a member of Southwestern Bell management, who also attended the grievance hearing. Vasquez, relying on union notes prepared by her at the hearing, testified that she was "shocked" and "surprised" when Garza was told by Southwestern Bell management, in her presence, that "he was the best employee they ever had," and that "if he hadn't gone to the doctor he wouldn't be sitting there with him being in this position of getting a non-driving job." Vasquez described how the October 20, 1994 incident had evolved from a personality clash between Garza and Hernandez to a "safe...